2014 Hot Topics in Environmental Law

We expect 2014 to be another busy year in the environmental arena. The Environmental Protection Agency (EPA) is expected to continue to focus on the energy sector, with emphasis on reducing toxic air pollutants and protecting the stratospheric ozone layer. Environmental legal issues related to oil and gas development and hydraulic fracturing will continue to make headlines in 2014 as federal and state agencies adopt additional regulations, and states continue to wrestle with the issue of local control. Below is a list of hot topics in air, water, waste and chemical regulation we will be following into 2014:

Air

We expect the following air-related issues to receive significant EPA attention in 2014:

• EPA's implementation of New Source Performance Standards (NSPS) Subpart OOOO (Quad O) for the oil and gas sector will likely continue to be difficult. In 2013, EPA extended the compliance deadlines for certain storage tanks to comply with NSPS Quad O requirements following industry petitions for reconsideration. In 2014, EPA will reconsider the remaining issues raised, including concerns regarding compliance monitoring.
• Following its priority to implement the President's plan to substantially reduce carbon dioxide emissions, EPA in 2014 is expected to propose a regulation that requires all new coal-fired units be built with carbon capture technologies. Concurrently, EPA and the states will continue to work together to reduce carbon dioxide emissions from the existing coal-fired fleet.
• EPA is expected to finalize its so-called "Tier 3" rule, which would lower the level of sulfur in gasoline and finalize the renewable fuel volumetric targets under the Renewable Fuel Standard.
• The United States Supreme Court will decide two major Clean Air Act cases, resolving the questions of whether EPA's Transport Rule should stand and whether EPA has authority to regulate greenhouse gases (GHG) from stationary sources.
• Enforcement priorities: Coal-fired power plants, cement, acid, and glass sectors. Climate change standards and greenhouse gas reporting rules.

Water

EPA and the U.S. Army Corps of Engineers are expected to jointly issue a proposed rule that would expand the scope of waters that can be regulated under the Clean Water Act. The draft rulemaking will likely subject all streams, wetlands, and a range of other non-navigable, intra-state waters to federal jurisdiction under the Clean Water Act.

• Enforcement priorities: Combined sewer overflows, stormwater runoff, concentrated animal feeding operations (CAFOs).

Waste

EPA will continue rulemaking efforts on industrial waste issues, e.g., the disposal of coal combustion waste material from coal-fired power plants (coal ash). In 2014, EPA is also expected to issue a final rule aimed at strengthening oversight of hazardous materials recycling under the solid waste regulations.

• Enforcement priorities: Mineral processing waste.

Chemical Regulation

EPA is expected to begin work on rulemaking that would require that the oil and gas industry provide data on chemicals used in the hydraulic fracturing process.

• Enforcement priorities: Reforming chemical management and reducing exposure to pesticides.

Environmental Review

This upcoming year, the Department of Energy's (DOE's) approval of applications to export liquefied natural gas (LNG) could see significant developments that impact access to overseas LNG markets. DOE has a backlog of more than 20 applications, and environmental groups are pressing DOE and the Federal Energy Regulatory Commission to assess the nationwide impacts of oil and gas development and hydraulic fracturing as part of the agencies' National Environmental Policy Act review.

Other 2014 Environmental Issues of Note

Brownfields: Along with the enforcement priorities identified above, EPA has also prioritized the aggressive pursuit of parties to clean up brownfield sites.

EPA Four-Year Strategic Plan: Although EPA has identified the issues identified above as enforcement priorities, the agency has also recently released a draft four-year strategic plan for FY 2014-18, expected to be finalized in 2014, that includes reduced numbers of inspections, enforcement matters and forced clean-ups.

However, EPA's draft FY 2014-2018 strategic plan emphasizes Next Generation Compliance, an umbrella term that includes strategies to prevent violations. These strategies include the use and requirement of advanced monitoring and information technologies to provide greater access to real-time electronic information about environmental conditions and compliance.

FTC and Unsubstantiated Environmental Claims: In 2014 the Federal Trade Commission (FTC) is likely to continue its aggressive enforcement against companies making unsubstantiated claims about the environmental benefits of their products, in violation of the FTC's Guides for the Use of Environmental Marketing Claims (also known as "The Green Guides"). In 2013, FTC brought at least 15 complaints against companies that marketed their products as environmentally friendly or "free of" harmful constituents, allegedly without a reliable scientific basis for those claims. Companies should be prepared to backup any environmental marketing claims with reliable evidence.